Posted
by
kdawson
on Sunday July 25, 2010 @02:53PM
from the watch-out-you-ink-cartridges dept.

tcrown007 sends along an appeals court ruling that, for once, limits the reach of the Digital Millennium Copyright Act's anti-circumvention clause. "MGE UPS makes UPS systems and software that are protected by hardware dongles. After the dongles expired, GE bypassed the dongles and continued to use the software. MGE sued, won, and has now lost on GE's appeal. Directly from the court's ruling (PDF): "Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA's anti-circumvention provision... The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.' Say what? I think I just saw a pig fly by."

If this precedent holds we may be in very good shape. The obvious generalization is to allowing such circumvention for fair use. If that occurs, then most of the problems with this legislation go out the window.

All that the precedent does is that it sends a warning to people to stop frivolously mixing in DMCA into what should be covered by contract law. The dongle is a mere enforcer of the contract so unless someone at MGE was very very daft GE would be in violation of a contract.

So while the first impression is that a pig has taken off, a more close inspection is showing that it is continuing on a ballistic trajectory after someone gave it some initial thrust. Not really flying.

It was such a surprise for the pig that it failed to remember gravity. Gravity took a look, tried to reach out, and then gave up, and focuses on things like fallen apples and making sure the next Pan Galactic Gargle Blaster arrives safely in the stomach, rather than attempting to escape through the 8 openings on the top of the Goran's head.

f this precedent holds we may be in very good shape. The obvious generalization is to allowing such circumvention for fair use. If that occurs, then most of the problems with this legislation go out the window.

Just to clarify: I hold in my hands a DRM-"protected" DVD that I own. You stand besides me, and I could lend the CD to you. What things do you think "fair use" would allow me and you to do?

I think in principle the DMCA is merely another charge to be tacked on when a crime (copyright violation) has already occurred. Sort of how you can get a heavier charge if you're near a school, use a firearm, are a felon, etc. In this case, if you not only violated copyright, but went well out of your way to do it by "circumventing a protection method". (makes it harder to claim accidental infringement)

But historically it's been getting used as the primary law broken, which was not what it was originally intended for. That's like being charged with being in a school zone, without any proof of your having been speeding. "So would you like to settle with us for having been in the school zone, or do you want to get drug through court to prove your innocence on speeding?"

The unfortunate part is that the law has technically been getting interpreted correctly as written, because it's written backwards in the first place. This judge that overturned on appeal probably interpreted the law for what it was supposed to be, not what it is. Normally I'm against this, but in this case true justice actually prevailed over book justice. As such I'm not sure whether to support this or not. It sets a bad example of how the legal system is supposed to work - that it has to malfunction for fair justice to prevail. I'd be a lot happier seeing the law getting fixed than getting end-run-around. Mainly because this is likely to be an isolated incident.

The entire idea that someone can be charged with circumvention without being charged with copyright violation is just plain backward.

The part where he ruled circumventing a Dongle to use software you are legally entitled to use is not illegal is good.

But, GE was illegally using software which it did not have the rights to use with of without the Dongle, which the judge said is OK. This part of his ruling is bad.

The judge did not say it was okay, only that MGE failed to provide sufficient proof of damages (they tried to claim damages against the total revenue of the division and not just revenue related to servicing MGE UPS products)

Correct me if I'm wrong, but I think GE still have to pay for violating the copyright/contract. The DMCA claim got thrown out because a dongle is a use prevention rather than a copy prevention device. The software itself was probably copied without circumventing anything. MGE are probably saying: "Oh what the hell it was worth a shot" regarding the DMCA claim, but it was not the core of their case. Regarding precedent, ther's not much in it for Joe average with his DVD collection.

The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.

It means everything for Joe Average's DVD collection. He should have no problem putting it on a home server or a laptop, for instance, because he is not violating the Copyright Act by copying it for his own viewing/use.

Wait - as far as I can tell that use is still a violation of copyright law, just not DMCA? So Joe Average is making a copy while his license on the DVD says no copying? Maybe that's better b/c DMCA is harsher on penalties than traditional copyright law?

Those question marks are really questions.. Any clarification appreciated..

It doesn't matter if the DVD says "no copying" if he is making copies that qualify as "fair use", which would take precedence. DMCA isn't about copying anyway, it is about bypassing security encryption. The judge appears to be saying "yes, they used the software illegally and are subject to fine, but using a crack to get around a dongle is not a DMCA violation by itself.".

In otherwords, if you copy your DVD using any method, then they can still sue you for infringement but is likely not a DMCA violation if you are doing so simply to USE the DVD (fair use). If you did it to make copies to sell, that might be a different case. In short, if you are breaking encryption for your applications that qualify under fair use, thus perfectly legal (make a personal backup copy of a disk you already own, or to create a critique, to parody but not satire, for education, etc.) then there is a good chance that you won't be found to be in violation of the DMCA. Keep in mind, IANAL and even being legally in the right can put you in the poorhouse defending yourself here in the good old USA.

My understanding is that a single copy for archival purposes is allowed.

There is no strict number of copies allowed. However, it's also not true to say that any time you copy a DVD for any purpose it's a copyright violation. There are many circumstances under which it's not, and backups have generally been held to be one of them. Having a large number of backup copies might be taken as evidence that your purpose was something other than backing the DVD up, though.

Also, the backups and the original must be treated as an indivisible unit. I.e., if you lend/sell/give the original (or any backup), then all other copies must go along as well.

I actually read that entire PDF. The reasoning is so convoluted, I fear my brain has twisted around itself. How do I unread it?

Really - having read it, all I got from it was that the claimant failed to prove damages. Well - that, and the fact that downloading and using a hacked software doesn't make me liable for bypassing DMCA. The second part is the only part that really matters to most slashdotters. But, the first point seems at least as important. If the claimant cannot reasonably demonstrate real

But, GE was illegally using software which it did not have the rights to use with of without the Dongle

You're looking in the wrong place. This case is not about GE (well, it is, but not for us). This case is about the DMCA and cracks are showing up in its armor.

This ruling would never have come down if the original defendant had not been a giant like GE. But it's good that corporations learn that the knife of these awful laws cuts both ways. Ultimately, these laws (and treaties) are going to hurt busine

The right to use the software is not one reserved exclusively for the author. That is, of the thousands of things you might do with a copy of the software, using it falls into the same category as "turning the CD into a frisbee" and "deleting it from your hard drive", not the same category as "making derivative works" and "selling copies" (those being the things you need permission for).

While they did circumvent a defensive measure, they didn't make a copy of it. This is a matter of a contractual violation (assuming it is even that, I'm no lawyer so...). They paid for said software use for a period of time, and are going beyond that allowed period of time.

If you read the opinion you will see that the Court found that they did not circumvent anything. Someone else did the circumvention and GE/PMI simply used a cracked copy.

Moreover, the DMCA’s anti-circumvention provision does not apply to the use of copyrighted works after the technological measure has been circumvented, targeting instead the circumvention itself. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001). MGE cites no evidence that a GE/PMI employee or representative wa

The copy in RAM is exempted in 17 USC 117(a)(1) [cornell.edu] Other states probably also have similar laws. You don't need a license to use an authorized copy of software.

The devil is in the details. You are allowed to make a copy into RAM if you have the right to use the software (so if I sold you some software with a contract to do anything you want with the software except loading it into RAM, and sued you as soon as you use it, that wouldn't fly). But it is a copy, obviously, so if you _don't_ have the right to use the software then everytime you load it into RAM you commit copyright infringement. That's why EULAs actually work. Nobody can hold you to the terms of a EULA

I'm sorry but you do not need a license to use a computer program any more than you need a license to read a book or look at a painting. Loading a copy into RAM as an essential step in the utilization of the program is not infringement (see above.) I challenge you to find anything in the law that says otherwise.

EULAs work because the terms are presented to you and you take some affirmative step that signifies that you agree to them, just like any other contract.

A copy is authorized if it's made under the authority of the copyright holder. When you obtain a copy of software that was manufactured by the copyright holder or someone authorized by them to manufacture copies, or download it from the copyright holder or someone authorized to distribute their software, then that copy is authorized.

EULAs exist because software companies want more than copyright gives them. A EULA is just an ordinary contract and has nothing to do with copyright.

The same reason that police say "You can't make a video of us in action!" in states where there is no such law (and other states with those laws, if you consider the US Constitution). They do it because they think it gives them more rights, although this has never been tested. Considering you aren't actually SIGNING a contract, it is likely that a click through EULA isn't worth the paper it's written on.

EULAs are the equivalent of McDonalds saying "By accepting this beverage from our drive-thru, you are a

Copyright doesn't cover that. Any copies necessary to use a authorized copy are deemed to be non-infringing. That includes copies in RAM. The reason why you need a license is that companies distribute their products contingent on agreeing to the license. No agreement no authorization to use the copy. It's kind of a bastardization of copyright as you're not supposed to give the copy away before working out the agreement. But it's not as bad as MS and the ever changing EULAs.

[quote]A jury awarded MGE more than $4.6 million in damages for copyright infringement and misappropriation of trade secrets, but the trial judge dismissed its Digital Millennium Copyright Act claim. MGE appealed, arguing that its dongles barred the kind of access to its software that the Act is meant to prevent.[/quote]

Common sense prevails again. Now let's start blocking common sense in EULA's and only license the software to our users that way any time they use our software they run the risk of breaking our agreement.

Microsoft at least isn't calling it EULA anymore. They are calling it a CONTRACT.

So I think this is kinda cute - I print out said "contract". I make some modifications, add or remove some clauses. And I am still waiting for an authorized Microsoft rep to come to my place and sign said "contract".

You know, I'll probably get hate for just asking this, but I really want to know: what is so bad about the MSFT EULA? I mean we have all heard the story of the guy that had to go to court to be allowed to sell his legally bought copy of AutoCAD, but short of printing off fake discs or VLK keys, has anybody ever been hassled by MSFT over their EULA? You look and everybody has Windows and Office discs for sale, OEM, standard, upgrade, and nobody gets hassled. My former boss bought and sold a ton of OEM Window

The problem is that some people do not like having terms dictated to them, "problems" or not. It's the principle of the thing. An "agreement" is between TWO parties. An EULA is one party telling another party what to do. Only the funny thing is, back in my day, usually it was the guy that was doing the paying that got to have a say.

There are good reasons for Microsoft to call it a contract. It doesn't make it so, though. If you purchase a copy of Microsoft software from someone other than Microsoft, there is no privity of contract between you and Microsoft. Nor is there any consideration that passes between you and Microsoft.

Lack of consideration means that even if you agree to the "contract" that displays during the installation process, Microsoft hasn't provided you any additional benefits beyond those you already have, those for wh

Anything DeCSS related just got opened. I can RIP DVDs legally if I own them. This also means that people can build DVD/hard drive juke boxes for home use and sell them where previously, we have heard that such products were blocked due to DMCA threats and claims.

Here, MGE has not shown that bypassing its dongle infringes a right
protected by the Copyright Act. MGE’s dongle merely prevents initial access to
the software. If no dongle is detected, the software program will not complete
the start-up process. However, even if a dongle is present, it does not prevent
the literal code or text of MGE’s copyrighted computer software from being freely
read and copied once that access is obtained; there is no encryption or other form
of protection on the software itself to prevent copyright violations. Because the
dongle does not protect against copyright violations, the mere fact that the
dongle itself is circumvented does not give rise to a circumvention violation
within the meaning of the DMCA.

Actually, that interpretation to me sounds like nonsense. You can very well copy a DVD image without DeCSS'ing it, and then use DeCSS on-the-fly to play it. The "copy protection" of CSS depends on the CSS key being only in a few approved devices just like this software only works with approved dongles. If it's not a violation of the DMCA to turn an unusable copy into a functional copy, then effective DeCSS doesn't protect against copyright violation either.

Note that in this case GE is a large company which has within it the know-how to break copy protection. But even if GE was within their rights to circumvent the dongles, it would still be illegal for them to give the software solution to anyone else -- even if the present ruling stands and the recipient would be allowed to break the protections themselves.

The real problem with the DMCA is that it criminalizes "trafficking" in anti-circumvention technology, even when both the provider and the recipient intend to make legal copies. So this ruling actually means basically nothing to individuals, and very little to companies (except for those that have in-house engineers capable of reinventing the wheel).

At the bottom there's no way for the courts to fix the DMCA, since it's likely within Congress's powers to enact and it's not up to the courts to second-guess Congress about the policy choices – no matter how bad they were. The only way to fix the DMCA is for Congress to fix it.

>it would still be illegal for them to give the software solution to anyone else

>the DMCA is that it criminalizes "trafficking" in [...] circumvention technology

They used the software to *use* the locked-down content, not to violate the copyright, therefore the software is not a circumvention tool (for violating copyright) and can be distributed without breaching the DMCA.

They used the software to *use* the locked-down content, not to violate the copyright, therefore the software is not a circumvention tool (for violating copyright) and can be distributed without breaching the DMCA.

For the anti-trafficking provision what matters is the potential uses of the tool. That GE as the initial develper used the tools for legitimate purposes is beside the point -- as long as the tools can be used to circumvent copyright protection, they fall under the no-trafficking prohibition.

Citation needed, copies to RAM are not counted as copying for the purposes of copyright law in the US.

Wrong. It counts as copying. But it is copying that is allowed by law _if you have the right to use the software_ in the first place, just like making a backup copy. If you don't have the right to use the software, then every time you load the software into RAM you commit copyright infringement.

Actually, AFAIK the present ruling (see Blizzard's Glider case) is that a copy to RAM is a true copy that's not even covered under fair use and is only allowed because of the EULA. Therefore if you violate the EULA, or haven't agreed to one, making a copy to RAM is a violation of copyright.

But even if GE was within their rights to circumvent the dongles, it would still be illegal for them to give the software solution to anyone else -- even if the present ruling stands and the recipient would be allowed to break the protections themselves.

Actually, a key part of the ruling is that GE did NOT break the protections themselves.

MGE cites no evidence that a GE/PMI
employee or representative was responsible for altering the Pacret and Muguet
software such that a dongle was not required to use the

I imagine these UPS systems are incredibly expensive as it is, and the maker does something so they're limited use? Which was probably discovered AFTER the fact. To me, that's highway robbery, you buy a machine, then have to upgrade a license?

I have to say, even though GE is one of the big evil companies that most slashdotters hate (or should hate, given hate towards companies like microsoft, GE makes them look like angels) They had a right to fight this.

If Company X says you're merely licensed, doesn't that mean that they now need to provide replacements in perpetuity? Lets say my priceless collection of 8 tracks has finally lost its magnetism. Isn't that company now required to provide me with replacement 8-tracks, at cost? Never mind that 8-tracks are a dead tech, I paid the license for 8-tracks, therefore they are OBLIGATED to make sure I keep that format.

Or even games? Shouldn't companies be obligated to support EVERY game they sell to valid "licensees

This is the equivalent of buying a game or a program that requires a media check (e.g. "Insert DVD/CD-ROM to start the game") and then downloading a modified executable from GameCopyWorld.com [gamecopyworld.com] to play your own game without the media check. Many people have been doing this for a long time and this ruling sets a precedent that effectively legitimizes the usage of these helpful executable.

The problems with GCW is that a lot of times they include a full copy of the modified executable instead of just a small patcher or cracker program so they are still violating the copyright on the original executable code by distributing it without a license from the authors. The quick solution would be to download the patchers or crackers but since many of those are built using pre-made small assembly or C modular code (not shared libraries or DLLs) that has also be used by virus makers many of these legitimate pieces of modular code have been flagged by anti-virus companies as viruses just because they were used to make them. This is why your keygen, patcher, cracker executable will end up flagging anti-virus warnings immediately on download or usage or even months or years after you've successfully used them without getting an infection since their modules were flagged later. So GCW has a hard time with false-positive virus warnings and that's why they show that web page on download about their code being 100% clean and still allow download of full executables instead of just the patchers.

And that's one more question I'll need to ask prospective hardware suppliers: Is any proprietary software required in order to use your hardware and, if so, is it only available and usable if we keep up an annual support contract? (Related question: Is a dongle required? There is? Well... just look at the time! Have a nice day.)

I could see this for large software packages (think RDBMS and other "enterprise"-level software) where one might need to keep a support contract in place in order to gain acces

I thought courts have already ruled that a program residing in memory is a copy, and therefore making that copy without the dongle (which implies limited consent to making said copy in memory) is a violation of copyright. I wouldn't be surprised to see this reversed.

(a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.-- 17 U.S.C. 117

For whatever reason, however, this only applies to computer programs. Presumably because other media weren't so easy to copy back when this part of the code was last modified in 1980.

I wonder, given that DVD menus are effectively a simple bytecode run in an interpretor that results in the playing of video (possibly with additional video and audio overlays) that the DVD as a whole can be taken to be a computer program and it's essential associated data files.

It's effectively a moot point as they aren't going to know about such back ups unless you're definitely violating copyright law. Meaning that they have no way of knowing if you make the copy, only if you distribute said copy over the net, or download as a substitute for backing up. Consequently, I doubt very much that it's going to be litigated at this point, except for third party providers of technology specifically to back up the materials.

Didn't Blizzard argue that loading a game into memory to play is a copy? And then altering it in memory would be a DMCA violation. In order to play a video thats encrypted, you must work on the data, and thus to do so must make a copy of the data off the disk.

Now IMO this 'copying' argument when used this way is retarded... but clearly IANAL

The problem here is that copyright is unnatural, and absolutely ridiculous. The only reason for copyright is controlling thought, and profiting excessively from created content. Their orwellian attempt at controlling information allows us to imagine all kinds of ridiculous circumstances.

Example:

If I legally play a movie at my house, but I happen to have a legal surveillance camera in there, and as part of the image my camera is recording, it records the surface of the TV, is that security footage illegal, does it constitute copyright infringement?

If I legally download a movie,let's say, from itunes, and I don't actively share it, but I have my machine connected to the internet, and my hard drive is shared through samba, unsecured, to the whole internet. If someone connects to that samba share, and then copies the movie, is that my fault? Is it my duty too to protect the media I have from being copied? To what extent?

If the photons that my LCD is emitting when I'm watching a move leave my house, am I broadcasting the movie, therefore, infringing copyright? Up to what point am I supposed to protect that movie from being copied? Is closing the curtains enough, or since energy can't be destroyed, only transformed, I am legally obliged to control the energy emanating from my LCD forever?

If I legally store a legally downloaded movie on my hard drive, and then, due to a vulnerability in my operating system, that information is leaked, and every single human being on the world downloads a copy, is it my fault or the fault of the developers of my OS?

Copyright is ridiculous and unnatural, and all attempts to control information are equally stupid.

No, backing up involves copying, and hence violates copyright. It does mean though that things like VLC can get on with playing DVDs/Blurry disks.

Note that copying a DVD is entirely trivial, and unencumbered by any protection at all. CSS is purely a "use-protection" mechanism (which is why it was always so violently wrong for the DMCA to apply to it -- copyright law was supposed to govern copying and distribution, not use.)

So IMHO, not being AL, this ruling does appear to argue against the DMCA's ability to regulate DeCSS cracking. I expect it will be promptly overturned at the next level of appeals, because after all we can't allow copyright law to work for both the producer and consumer, can we?

I think a more likely question is "does that mean it's now legal to circumvent copy protection to play content?" It sounds like the ruling found that it was legal to circumvent technological measures so that they could use the product - I don't know that making a copy of the product would necessarily qualify as use, but I imagine playing back a DVD or BluRay disc would.

What this would appear to mean is that any use of a dongle by a program for licensing is now null and void. If a "remover" tool is available to eliminate the need for the dongle, then anyone is free to use this.

Well, no, it doesn't mean that "anyone is free to use this", it just means that its not a violation of the DMCA.

But simply disabling the dongle would appear to be perfectly legal.

That it doesn't violate the DMCA doesn't mean that it could not be a violation of some other legal restriction (such as th

What this would appear to mean is that any use of a dongle by a program for licensing is now null and void. If a "remover" tool is available to eliminate the need for the dongle, then anyone is free to use this.

Not quite. If the software was obtained by means of a legally binding _contract_ with the original manufacturer, the "license" (contract) terms still apply. What this decision says is that the DMCA does not apply to an end user unless the user is circumventing a technological protection measure for